Considered and decided by Toussaint, Chief Judge; Lansing,
Judge; and Huspeni, Judge.

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

Appellant St. Paul Fire and Marine Insurance Co. (St.
Paul) and its insureds, respondents Hypoguard USA, Inc., and Medisys USA, Inc.
(collectively Hypoguard), brought cross-motions for summary judgment to resolve
whether St. Paul had a duty to defend Hypoguard in a class action brought
against it. The district court
determined that St. Paul was obligated to defend Hypoguard, granted Hypoguard’s
motion, and denied St. Paul’s motion. Because we conclude that St. Paul has no duty
to defend Hypoguard in that action, we reverse the summary judgment granted to
Hypoguard and remand for entry of summary judgment for St. Paul.

FACTS

The Underlying Action

Hypoguard
manufactures glucose monitors. In January
2005, two purchasers of its glucose monitors brought an action (the Miller action) against Hypoguard in
Illinois state court. The Miller complaint stated that the action
was brought “on behalf of plaintiffs and a Class consisting of all persons and
entities in the United States who purchased . . . blood glucose monitors . . .
manufactured by or on behalf of [respondents]” and that the plaintiffs asserted
claims of breach of express warranties, breach of implied warranties, breach of
covenant of good faith and fair dealing, unjust enrichment, breach of implied
warranty under the Magnuson-Moss Act, consumer fraud and common law fraud. The Miller
complaint asserted that the monitors were defective and that “[t]he
financial costs to plaintiffs and class members as a result of this defect have
been substantial. Plaintiffs have had to
buy new monitors or will have to buy new ones in the future.” The Miller
complaint also stated that the action “seeks compensation for members of
the Class for the financial and other costs incurred by them as a result of
their purchase of the blood glucose monitors” and added that “plaintiffs and each
member of the Class expressly disclaim any individual recovery in excess of
[$50,000], and any claims for personal injury.”

In
March 2005, Hypoguard removed the matter to federal district court. The Miller
plaintiffs sought to have it remanded to state court, arguing that the $75,000
threshhold for federal court was not met because their complaint asserted that they
sought “less than $50,000 per plaintiff” and “expressly disclaim[ed] any
individual recovery in excess of that amount, and any claims for personal
injury.” Their motion for a remand was
denied. Miller v. Hypoguard USA, Inc., No. 05-CV-0186-DRH (S.D. Ill. Aug.
25, 2005).

In
May 2005, the Miller plaintiffs
amended their complaint to add a count of breach of contract, asserting that,
as a result of Hypoguard’s breach of contract, “plaintiffs have been damaged in
the amount that they paid for the blood glucose monitor and supplies, in an
amount substantially less than $50,000.00 per class member.” When the Miller
plaintiffs moved for class certification, they asserted that an aggregate
damage formula could be used for all class members: “calculation of damages is
based on the cost to replace the defective blood glucose monitors and test
strips. One measure is the price charged
by defendants for the meters and test strips.”

In
June 2005, Hypoguard moved to dismiss all counts of the Miller amended complaint, arguing that the Miller plaintiffs “disclaim[ed] any claims for personal injury” and
sought either repayment of the money spent to purchase the monitors and strips
or actual damages. The district court
granted Hypoguard’s motion in part by dismissing some claims, including the
Magnuson-Moss claim, for plaintiffs’ failure to give timely notice because the
exception to the notice requirements applied only to situations involving
personal injury and the Miller plaintiffs
did not allege personal injury. Miller v. Hypoguard USA, Inc., No.
05-CV-0186-DRH (S.D. Ill. Dec. 20, 2005).[1]

The policy

When
the Miller plaintiffs brought their
action, Hypoguard had a policy with St. Paul. In relevant part, the policy states:

Right and duty to defend a protected person

We’ll have the right and duty to
defend any protected person against a claim or suit for injury or damage
covered by this agreement. We’ll have
such right and duty even if all of the allegations of the claim or suit are
groundless . . . .

. . . .

Claim means a demand that seeks damages.

Suit means a civil proceeding that seeks damages. . . .

Injury or damage means:

·bodily injury, personal injury, or advertising
injury; or

·property damage.

Offense means any:

·personal injury offense; or

·advertising injury offense.

The policy also states:

Bodily injury
means any physical harm, including sickness or disease, to the physical health
of other persons.

·Invasion of the right of private occupancy of a
room, dwelling, or premises . . . .

·Libel, or slander, in or with covered material.

·Making known to any person or organization
covered material that disparages the business . . . of others.

·Making known to any person or organization
covered material that violates a person’s right of privacy.

Hypoguard tendered
defense of Miller to St. Paul. St. Paul refused defense on the ground that
“the [Miller] Complaint, as framed,
does not present any potentially covered claim.” Hypoguard then brought this action and moved
for a summary judgment that St. Paul is obliged to defend Hypoguard in Miller.
St. Paul brought a cross-motion for summary judgment. The district court, after finding the policy
ambiguous, interpreted it to extend St. Paul’s duty to defend to the underlying
action, granted summary judgment to Hypoguard, and denied St. Paul’s motion.

As
a threshold matter, we reach a conclusion contrary to that of the district
court on whether the policy language is ambiguous. Contract language is ambiguous when it is “susceptible
of more than one interpretation.” Hilligoss v. Cargill, Inc., 649 N.W.2d
142, 148 (Minn. 2002). The district
court found the policy was ambiguous not because it is “susceptible of more
than one interpretation” but rather because it does not insert the definitions
of terms into the sentences where the terms are used. But “[a]mbiguity does not arise merely
because a policy must be read with some care.”
Steele v. Great W. Cas. Co.,
540 N.W.2d 886, 889-90 (Minn. App. 1995), review
denied (Minn. Feb. 9, 1996). Thus, a
document is not ambiguous because a reader must refer to another page for a
definition, and a term does not acquire another meaning by being defined on one
page and used on another. For these
reasons, we conclude that the policy’s statement of the duty to defend is not
ambiguous.

In considering a
possible alternative basis for affirmance, we recognize that the Miller complaint waived any claim for the
varying damages that would result from individual bodily injury claims in an
effort to obtain class-action certification.[2]See Minn.
R. Civ. P. 23.02(c) (requiring that, in a class action, “questions of law or
fact common to the members of the class predominate over any questions
affecting only individual members”); see
alsoLewy 1990 Trust v. Inv. Advisors,
Inc., 650 N.W.2d 445, 456 (Minn. App. 2002) (holding that a need for
different damages calculations for each plaintiff when “damages do not lend
themselves to mechanical calculation” would “weigh against certification”), review denied (Minn. Nov. 19, 2002). While that effort may have been proper, we
now address whether the damages the Miller
plaintiffs did seek (i.e., the cost of the glucose monitors and strips) are
arguably covered by St. Paul’s duty to “defend any protected person against a
claim or suit for injury or damage covered by this agreement.” We conclude that they are not covered.

“In
determining whether a policy arguably provides coverage, an appellate court must
compare the allegations in the complaint in the underlying action with the
relevant language in the insurance policy.” Reinsurance
Ass’n of Minn. v. Timmer, 641 N.W.2d 302, 311 (Minn. App. 2002) (quotation
omitted), review denied (Minn. May
14, 2002). While a court may “go beyond
the face of the complaint when determining the true nature of the claims,” a
court may not “determine coverage on the basis of claims that could have been
made (for example, are suggested by the fact pattern) but were not.” Id.
(quotation omitted). “For
purposes of determining arguable coverage, [an appellate court] will limit
[itself] to the causes of action alleged in the complaint.” Id.

We examine Miller’s second amended complaint to determine the type of injury
asserted by its three claims. The first,
a claim for breach of contract, asserts that “plaintiffs have been damaged in the
amount that they paid for the blood glucose monitor and supplies.” The second, a claim under the Illinois
Consumer Fraud and Deceptive Practices Act and the Minnesota Deceptive Trade
Practices Act, asserts that Hypoguard made statements that it knew to be false
and omitted making necessary true statements “with the intent that plaintiffs
and the Class members would rely on [the statements and omissions] and to
induce plaintiffs and the Class members to purchase Hypoguard . . . monitors
and strips,” and that “Plaintiffs and the other members of the Class, unaware
of [Hypoguard’s] concealment or suppression, purchased at least one Hypoguard
blood glucose monitors [sic] or strips.”
The third, a claim for common-law fraud, asserts that if plaintiffs and
other class members had “known of the concealed facts, they would not have
purchased the Hypoguard blood glucose monitors or paid as much for the product
as they did.” The injury alleged in the Miller complaint is the purchase price
of Hypoguard’s products and is neither a bodily injury nor a personal injury
within the meaning of the policy. See Timmer, 641 N.W.2d at 311 (to determine
whether a policy provides coverage in an underlying action, a court compares the complaint with the
relevant policy language).

The words “bodily injury” never appear in the Miller complaint and the words “personal
injury” appear only in the context that “plaintiffs and each member of the
Class expressly disclaim . . . any claims for personal injury.” Moreover, the policy defines “bodily injury”
as “any physical harm, including sickness or disease, to the physical health of
other persons,” and defines “personal injury” as injury resulting from torts
such as false arrest, detention, or imprisonment; malicious prosecution; wrongful
entry of eviction; violation of the right of privacy; or libel and
slander. The Miller plaintiffs were presumably not familiar with the language of
Hypoguard’s insurance policy defining bodily injury and personal injury, but, like
the language in their complaint, their conduct during litigation demonstrates
that they were not seeking to recover for physical injury under any name. They refused to produce lists of their
medications, stating that they were “not relevant in this case which alleges no
personal injury but that a defective blood glucose monitor was sold to the
plaintiffs.” They also refused to
produce medical records, stating that they “have not put their health condition
at issue in that they have stipulated they are not making a claim for personal
injuries.” These refusals, like the
language of the complaint, demonstrate that the Miller plaintiffs were not seeking recovery for bodily injury or
personal injury.

The policy in Dahlberg
provided that the insurer would pay “amounts any protected person is legally
required to pay as damages for covered bodily injury, property damage or fire
damage. . . .” Id. at 675. The policy
“included ‘mental anguish’ as a covered bodily injury.” Id.
at 677. The complaint in the California
action alleged emotional distress as an injury, and, before class certification
was denied, the insurer had agreed to defend Dahlberg. Id.
at 675. Hypoguard argues that St. Paul
must defend because “[l]ike the California plaintiffs in Dahlberg, the Miller
plaintiffs repeatedly alleged emotional distress.” The argument fails for two reasons. First, contrary to Hypoguard’s argument, the Miller complaint does not include the
phrase “emotional distress” anywhere, and does not make a claim of intentional
or negligent infliction of emotional distress.
Second, Dahlberg’s policy defined bodily injury to include mental
anguish, id. at 677, and the emotional
distress alleged by the plaintiffs in the California action was arguably related
to, or a form of, mental anguish. The
policy here does not include mental anguish, emotional distress, or any similar
condition in the definitions of either bodily injury or personal injury. Therefore, even if the Miller plaintiffs had claimed emotional distress, the claim would
be outside St. Paul’s duty to defend.

In the Minnesota Dahlberg action, the insurer declined
defense because the claimed injures were not covered by the policy. Id.
at 676. This court agreed:

Dahlberg first failed to meet the
initial threshold of establishing a covered claim by presenting complaints that
excluded allegations of bodily injury or mental anguish. Not only did the . . . Minnesota complaint .
. . fail to allege such injuries, [it] also omitted claims typically resulting
in mental anguish or general bodily injury. Instead, . . . [it] emphasized the classes’
monetary damages rather than physical injuries.
The Minnesota complaint specifically stated “[p]laintiffs, seek
compensation for economic damage” and the class is seeking “monetary damages.”

Id.
at 677-78 (citations omitted). Like the
complaint in Dahlberg, the complaint
here specifically disclaims personal injury and emphasizes monetary damages
rather than physical injuries.

But
Dahlberg also provides that “if a
complaint fails to establish coverage, an insurer still must accept tender of
defense if it has independent knowledge of facts that may establish
coverage.” Id. at 677. Dahlberg argued
that the allegation of emotional distress in the California complaint gave the
insurer independent knowledge of facts that might establish coverage. Id. That argument was rejected.

[Dahlberg] failed to establish a
covered claim simply by relying on allegations contained in the earlier
California complaint. Although the
California class action arose from the same set of factual circumstances, the
California complaint differed from the . . . Minnesota complaint . . . by
including specific allegations of emotional distress and involving claims that
usually involve bodily injury. Because the . . . Minnesota complaint . . . did
not allege such injuries or even incorporate such allegations from the
California complaint by reference, [the insurer] was under no obligation to
investigate into the possibility of coverage based on this earlier, separate,
and dissimilar action. To hold otherwise would require insurers to speculate
about possible coverage when the complaint against their insureds and extrinsic
evidence clearly fail to establish a covered claim.

Id.
at 678 (citation omitted). Like the
insurer in Dahlberg, St. Paul was not
required to speculate about its possible obligation to defend when the
underlying complaint alleged only claims for breach of contract, common-law
fraud, and violation of the Illinois Consumer Fraud and Deceptive Practices Act
and the Minnesota Deceptive Trade Practices Act, and sought only the purchase
price of a glucose monitor and test strips as damages. Dahlberg,
like Timmer, requires reversal of the
summary judgment granted on the basis of St. Paul’s duty to defend.[3]

We
conclude that St. Paul has no duty to defend Hypoguard, reverse the summary
judgment granted to Hypoguard, and remand for the entry of summary judgment for
St. Paul.

[2]
The Miller complaint identifies the
Class as “comprised of thousands of individuals who purchased Hypoguard blood
glucose monitors with a common design defect” and explains that “[s]ince the
damages suffered by individual class members may be relatively small, the
expenses and burden of individual litigation make it impossible for members of
the Class to individually seek redress for the wrongful conduct alleged.”

[3]
Hypoguard also relies on three cases from other jurisdictions. Two are distinguishable, and the third is
contrary to Minnesota law. In Voicestream Wireless Corp. v. Fed. Ins. Co.,
the plaintiffs alleged bodily injury in the form of “radio frequency radiation
that [the defendants] knew to cause biological changes in the human body,” and
sought “maximum legal and equitable relief for the alleged bodily injury, as
well as punitive damages.” 112 Fed.
Appx. 553, 555-56 (9th Cir. 2004) (quotation omitted). The Miller
plaintiffs neither alleged nor sought relief for bodily injury and explicitly
disclaimed relief for personal injury.
In N. Ins. Co. of N.Y. v.
Baltimore Bus. Commc’n, Inc., the insurer “fail[ed] to conclusively
establish that the . . . plaintiffs have foresworn any claim for damages
because of bodily injury.” 68 Fed. Appx.
414, 421 (4th Cir. 2003) (quotation omitted).
The Miller plaintiffs
explicitly foreswore any claim for such damages in their complaint. Finally, in Motorola, Inc. v. Associated Indem. Corp., the court found a duty
to defend based on language withdrawn from the amended complaint. 878 So. 2d 824 (La. App 2004). “Despite the . . . plaintiffs’ voluntary elimination
of claims for certain elements of alleged [covered] damages, the factual
grounds of their cause of action remain the same.” Id at
834. Thus, the duty to defend was based
on a claim that could have been made, but was not. But seeTimmer, 641 N.W.2d at 311 (a court may not “determine coverage on the basis of
claims that could have been made (for example, are suggested by the fact
pattern) but were not.”